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1. Define the term ‘civil rights and obligations’.
This is an autonomous concept. It is not conclusively defined but will include most “private law” actions and many actions which have an effect on an individual’s Convention rights. It does not extend to certain administrative hearings, especially those involving public duties, mere claims (i.e. no rights) and discretionary administrative decisions.
2. Define the term ‘criminal charge’.
An autonomous concept, not confined to way matters are categorised in domestic law. The primary point is that the hearing has a criminal character (e.g. it has a criminal standard of proof) but, in particular, a decisive factor is whether the hearing concerns the liability of an individual to be punished.
3. How does Findlay v United Kingdom demonstrate the requirements of an independent hearing?
Findlay concerned the definition of independence. The ECtHR identified factors including the following, as being relevant: the manner of appointment of the members of a court or tribunal; their term of office; the existence of guarantees against outside pressures, and whether there is an appearance of independence.
4. What does the term ‘equality of arms’ mean?
This is the general idea (implied by or inherent in the idea of a “fair hearing”) that all parties (claimant, defendant and the court itself) have equal access to the evidence before the court.
5. Must trials and hearings always be in public to satisfy Article 6; if not, give two circumstances when they may be in private?
Article 6(1) allows some hearing to be in private because of the need, for instance, to protect the rights of children or the interests of national security (see the text of Article 6(1).
6. Explain the right of ‘access to a court’ and give two examples of situations in which it has been necessary to assert this right.
A right inherent in Article 6(1) is that a person has a right to have access to a court to have his or her legal rights (i.e. civil rights) determined. Two examples are, first, interferences with prisoners trying to get their complaints about conditions heard by courts (Golder v UK); and whether the principle of “state immunity” can prevent certain claims against sovereign governments being heard (e.g. Benhharbouche v SSFCA [2017] UKSC 62
7. When, if at all, can Article 6 rights come into play before any trial or hearing commences?
An example is the denial by the police of a lawyer during questioning; of the fairness of rules restricting the right to silence in a police station.
8. How does Article 6 control undercover policing that is aimed at getting evidence of criminal activity?
Although there is no absolute ban on unlawfully obtained evidence, the way in which evidence has been obtained can affect Article 6 rights. A conviction based on evidence obtained by entrapment or by encouraging the defendant to commit a crime can be unfair and a breach of Article 6 (see, for example, R v Looseley; Attorney General’s Reference (No 3 of 2000)).
9. Can compelled evidence ever the admissible in a criminal trial?
Yes. The general principle is that it violates Article 6(1) and (2) but neither are absolute and there may be circumstances in which a criminal conviction serves a strong social objective which overrides the ban on compelled evidence (see O’Halloran and Francis v United Kingdom).
10. What is meant by the ‘sole or decisive’ rule—and is it absolute?
The rule is that a conviction or other legal burden should not be based solely or decisively on evidence that the defendant has not seen or been able to comment on. In Al-Khawaja v UK the Grand Chamber accepted that this rule was not absolute. If there were, on the facts of a case, sufficient safeguards, a conviction could still be valid.